W.C. No. 3-105-328Industrial Claim Appeals Office.
January 27, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ) which permitted the respondents to reduce their liability for permanent total disability benefits on account of social security retirement benefits paid to the claimant and his wife. We affirm.
The parties entered into a stipulation concerning the relevant facts. The claimant sustained a compensable injury in September 1992. He reached maximum medical improvement on December 19, 1994, and is permanently and totally disabled. Respondent Colorado Compensation Insurance Authority (CCIA) is liable for eighty-five percent of the claimant’s permanent total disability benefits, and the Subsequent Injury Fund (SIF) is liable for fifteen percent of the benefits.
It is undisputed that the claimant is receiving social security retirement benefits, and that he has reached the age of sixty-five. It is also undisputed that the claimant’s wife is receiving social security retirement benefits based on the claimant’s social security account.
It is also relevant that the claimant applied for social security disability benefits in January 1993. However, his claim was denied “because he did not meet the earnings requirement of the law at the time he stated he became disabled or at any later date.”
Relying on § 8-42-103(1)(c)(II), C.R.S. (1996 Cum. Supp.), the ALJ concluded that the CCIA and the SIF are entitled to an offset against their liability on account of the social security retirement benefits paid to the claimant and his wife. However, the claimant contends that the ALJ’s order is erroneous because, contrary to § 8-42-103(1)(c)(II)(A), C.R.S. (1996 Cum. Supp.), the reduction for social security retirement benefits would exceed the reduction specified in subparagraph (c)(I) for periodic disability benefits. The claimant reasons that, because he was never entitled to federal periodic disability benefits, any reduction of his compensation benefits due to social security retirement benefits will “exceed the reduction specified in subparagraph (c)(I).” We are not persuaded.
Section 8-42-103(1)(c)(II) provides that, when a claimant reaches age sixty-five, respondents are entitled to reduce payments for permanent total disability benefits on account of “periodic benefits granted by the federal old-age, survivors, and disability insurance act.” Section 8-42-103(1)(c)(II)(A) provides that compensation shall be reduced, but not below zero:
“By an amount equal as nearly as practical to one-half such federal benefits; except that this reduction for the periodic benefits granted by the federal old-age, survivors, and disability insurance act shall not exceed the reduction specified in subparagraph (I) of this paragraph (c) for the periodic disability benefits payable to an individual.”
In interpreting this statute we must seek to effectuate the legislative intent. In so doing, we should look first to the language of the statute and give the words their plain and ordinary meanings. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). If the statutory language is clear and unambiguous, we need not resort to rules of statutory construction. City of Thornton v. Replogle, 888 P.2d 782 (Colo. 1995). However, to the extent an ambiguity exists, we may look to the purpose of the enactment, and the problem sought to be solved by the statute. Further, we should construe the statute in a manner that gives consistent, harmonious, and sensible effect to all its parts Henderson v. RSI, Inc., 824 P.2d 91 (Colo.App. 1991).
In our view, the plain language of § 8-42-103(1)(C)(II)(A) does not support the result argued for by the claimant. Section 8-42-103(1)(c)(II) permits permanent total disability benefits to be reduced by the claimant’s receipt of social security retirement benefits. Section 8-42-103(1)(c)(II)(A) specifies that the reduction should be equal to one-half of the social security retirement benefits, except that the “reduction” for social security retirement benefits may not exceed “the reduction specified” for “periodic disability benefits payable” to the claimant under paragraph (c)(I). Thus, the initial question is whether § 8-42-103(1)(c)(I) “specifies” any reduction in benefits for the claimant.
Subparagraph (c)(I) provides for reduction of workers’ compensation disability benefits on account of a federal periodic disability benefits “payable to an individual.” The reduction is in an “amount equal as nearly as practical to one-half such federal periodic benefits.” It has been held that periodic disability benefits are “payable” under subparagraph (c)(I) if the claimant is entitled to receive the benefits, regardless of whether the claimant actually applies for them. Hurtado v. CFI Steel Corp., 168 Colo. 37, 449 P.2d 819 (1969); Arellano v. Division of Labor, 42 Colo. App. 149, 590 P.2d 987 (1979).
Here, the parties stipulated that the claimant was never entitled to any social security disability benefits. Therefore, subparagraph (c)(I) does not “specify” any “reduction” in the claimant’s compensation benefits. Since this is true, the “reduction” of benefits attributable to the claimant’s receipt of social security retirement benefits does not exceed any reduction specified by subparagraph (c)(I). Therefore, the ALJ’s interpretation of § 8-42-103(1)(c)(II)(A) was correct.
However, even if we were to concede that §8-42-103(1)(c)(II)(A) is ambiguous, we would not reach the result argued for by the claimant. The apparent purpose of the social security retirement offset is to prevent a “double recovery” for the same wage loss when the claimant is entitled to receive lifetime permanent total disability benefits, but also retires from the workforce and is entitled to public or private retirement benefits. See L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994); Nye v. Industrial Claim Appeals Office, 883 P.2d 607
(Colo.App. 1994); Culver v. Ace Electric, W.C. No. 3-104-385, 4-272-176, September 17, 1996. The result argued for by the claimant would permit a “double recovery” for a claimant who receives social security retirement benefits at age sixty-five, but was not entitled to social security disability benefits prior to his sixty-fifth birthday. Conversely, a claimant who was eligible for social security disability benefits prior to reaching age sixty-five would suffer an offset when he becomes eligible for social security retirement benefits at age sixty-five. This result would defeat the purpose of avoiding double recovery, and make a distinction between claimants which finds no logical basis in the statute.
In our view, the best reading of § 8-42-103(1)(c)(II)(A) is that it is designed to afford protection to claimants whose workers’ compensation benefits are reduced on account of their receipt of social security disability benefits prior to reaching age sixty-five. Subparagraph (c)(II)(A) accomplishes this result by ensuring that, when such claimants receive social security retirement benefits, they will not suddenly experience an increased offset on account of their eligibility for social security retirement benefits.
The claimant has also argues that § 8-42-103(1)(c)(II) is unconstitutional because it denies equal protection of the laws. However, this issue is beyond our jurisdiction and we do not consider it. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 20, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed January 27, 1997 to the following parties:
Raymond G. Stolworthy, 2694 County Road 225, Durango, CO 81301
John H. Clark Construction, 5722 County Road 311, Ignacio, CO 81137-9712
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Special Funds, Attn: Kathleen Pennucci (Interagency Mail)
Gail Harris, Esq., 572 E. Third Ave., Durango, CO 81301 (For the Claimant)
Scot J. Houska, Esq., 744 Horizon Ct., Ste. 360, Grand Junction, CO 81506 (For the Respondents)
David F. Schutzenhofer, Esq., Attorney General’s Office, 1525 Sherman St., 5th Flr., Denver, CO 80203 (For SIF)
By: ___________________________________________